Chapter 13.37

ENCROACHMENT PERMITS

Parts:

• 1 Purpose and Definitions 2 General Provisions 3 Permit Terms and Conditions 4 Major Encroachments - Permit Authority, Approval, and Denial

• 5 Minor Encroachments - Permit Authority, Approval, and Denial

• 6 Miscellaneous Provisions

Part 1

PURPOSE AND DEFINITIONS

Sections:

T13:75

SAN JOSÉ CODE

§ 13.37.100

This Chapter is adopted to protect and preserve access to and unobstructed use of public property; provide standards for the control, inspection and maintenance of private improvements within public property; and protect the safety, health and general welfare of the public. (Ord. 29966.)

The definitions set forth in this Section shall have the following meanings for the purposes of this Chapter.

• A. "Applicant" means a person or entity who applies for a Permit pursuant to this Chapter.

• B. "Director" means the Director of Public Works for the City of San José or such other person that the City Manager may designate to administer the provisions of this Chapter.

• C. "Encroachment" means any structure, improvement or object of any kind or character, that is placed, installed or constructed, temporarily or permanently on, under, over or across any Public Property, but excludes improvements required to be installed or constructed on Public Property as a condition of approval of a land use entitlement or pursuant to a public works project, or anything placed, installed, constructed or maintained on Public Property by or for the City.

• D. "Encroachment Agreement" means an agreement substantially in the form approved by the City Council that shall be executed as a condition of approval of an Encroachment governed by this Chapter.

• E. "Major Encroachment" means any Encroachment that is a non-temporary improvement or object not readily removable with minimal alteration or damage to adjoining Public Property or private

property, including, without limitation, footings, foundations, basements, vaults, earth retaining structures, walls, roof overhangs and ramps. Major Encroachment shall include any Encroachment that is not a Minor Encroachment.

• F. "Minor Encroachment" means any Encroachment that is a temporary, nonstructural improvement or object readily removable with minimal alteration or damage to adjoining Public Property or private property, such as planters, benches, bicycle parking, facilities for special activities, dining facilities associated with an adjacent business, underground conduit crossings, special driveways and similar Encroachments.

• G. "Permit" means the license issued by the City pursuant to this Chapter that authorizes an Encroachment.

• H. "Permittee" means the person or entity who has obtained a Permit pursuant to this Chapter.

• I. "Public Property" means any right-ofway or other public easement owned or controlled by the City that has been offered for dedication to the public, whether express or implied, or has been dedicated to the public, whether express or implied. Public Property encompasses all of the physical area that the public or City may be entitled to use pursuant to law, including below-grade and air space areas.

• (Ord. 29966.)

Part 2

GENERAL PROVISIONS

Sections:

• 13.37.210 No waiver of rights or immunities.

• 13.37.220 Compliance with plans, laws and other permits.

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STREETS, SIDEWALKS AND PUBLIC PLACES

§ 13.37.230

Encroachments placed, installed, constructed or maintained without authorization from the City are unlawful and the owner of the Encroachment shall either remove it at their sole expense or obtain authorization under this Chapter or another provision of this code. The Director shall send written notice notifying the owner of the unlawful Encroachment. If the owner does not remove the Encroachment and restore the Public Property or apply for authorization to maintain the Encroachment within thirty (30) days of the City's notification, the City shall have the right to immediately remove the illegal Encroachment and restore the Public Property, and the owner shall be liable for all of the City's direct and indirect costs and expenses. (Ord. 29966.)

• A. Any authorization from the City to maintain an Encroachment shall be subject to the right of the City and the general public, or any other person, firm, corporation, district or other body of persons entitled thereto, to use the Public Property for any purpose for which it may be lawfully used, and no part of the Public Property shall be unduly obstructed at any time. All work or use under a Permit shall be planned and executed in a manner that will least interfere with the safe and convenient use of the Public Property. Without the pre-authorization of the City Council, no Public Property shall be closed, public access or use to Public Property be denied, or access to adjacent private property be impaired.

• B. The City's approval or issuance of a Permit shall not be construed to waive its immunities under applicable law or limit its regulatory, governmental or legislative authority, includ-

ing police powers to protect the public health, safety and welfare or to protect the environment.

(Ord. 29966.)

• A. No Permit shall be issued unless the proposed Encroachment complies with the City of San José General Plan and any applicable Specific or Area Plan, this Chapter and other chapters of this code, and all other applicable laws, ordinances, codes and regulations.

• B. The issuance of a Permit shall not exempt the Permittee from obtaining and complying with any other required permits or approvals.

• C. An Encroachment Agreement shall be executed before any permit is issued by the City that would allow the installation or construction of an Encroachment governed by this Chapter.

• (Ord. 29966.)

A Permit pursuant to this Chapter shall not be required for any of the following:

• A. Encroachments authorized by other provisions of this code, including, without limitation, Chapters 13.08, 13.14, 13.18, 13.20, 13.36, 15.50, 17.48 and 20.100, which shall be governed by such other code provision;

• B. Encroachments authorized prior to the adoption of this Chapter by resolution of the City Council or a written agreement with or permit from the City, which shall be governed by the terms of such resolution, agreement or permit; and

• C. Encroachments for windows, balconies and architectural features as set forth in Section 3202.3.2 of the California Building Code, as adopted by the City and as the same may be amended from time to time, provided that such Encroachments

T13:77

SAN JOSÉ CODE

§ 13.37.230

are part of a project located in a General Plan-designated Planned Growth Area and shall otherwise be governed by this Chapter.

• (Ord. 29966.)

Part 3

PERMIT TERMS AND CONDITIONS

Sections:

• A. Each Permit for a Major Encroachment shall not be effective until all of the following conditions have been satisfied:

  1. The Encroachment has been approved by the City Council in accordance with this Chapter;

  2. The Applicant has executed an Encroachment Agreement;

  3. The Applicant has filed with the City satisfactory evidence of compliance with required insurance coverages; and

  4. The Permit has been recorded on the Permittee's property.

• B. Each Permit for a Minor Encroachment shall not be effective until all of the following conditions have been satisfied:

  1. The Encroachment has been approved by the Director in accordance with this Chapter;

  2. The Applicant has filed with the City satisfactory evidence of compliance with required insurance coverages; and

  3. The Applicant has executed the Permit, which shall incorporate the terms of the Encroachment Agreement.

• (Ord. 29966.)

• A. All Encroachments governed by this Chapter shall be subject to the terms of an Encroach-

ment Agreement. For privately owned or maintained Encroachments governed by this Chapter, an Encroachment Agreement shall be executed even if a Permit under this Chapter is not required.

• B. All Encroachments shall be allowed only as a revocable license. The City may revoke or terminate Permits issued under this Chapter if: (i) the City determines to use the Public Property for a public purpose; (ii) the City determines that the Encroachment conflicts with the public's current or prospective use of the Public Property; (iii) the City determines that the Encroachment constitutes a public nuisance; (iv) the Encroachment is declared unlawful by a court of competent jurisdiction; or (v) the Permittee is in default under the Encroachment Agreement.

• C. Upon the revocation or termination of a Permit, it shall be the Director's responsibility to require the Permittee, at its sole expense and within thirty (30) days after revocation or termination, to remove the Encroachment and restore the Public Property to its pre-Encroachment condition, all to the Director's satisfaction.

• D. The Permittee shall agree to indemnify the City with an indemnification agreement satisfactory to the City Attorney.

• E. The City's Risk Manager shall establish and may modify the minimum public liability insurance requirements for Permits. The policy of insurance shall be maintained by the Permittee at its sole expense at all times during the term of the Permit.

• F. For Major Encroachments, an Encroachment Agreement shall be recorded on the Permittee's property and be binding on the Permittee's transferees and successor owners. The Permittee shall notify successor owners of the Encroachment's existence and the Encroachment Agreement's terms prior to the sale or transfer of its property. Successor owners shall

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§ 13.37.410

• submit written consent to the Encroachment Agreement's terms at least sixty (60) days prior to their acquisition of the property.

• G. Once a Permit is issued for a Major Encroachment, no changes may be made to the Permit without the City Council's approval. Once a Permit is issued for a Minor Encroachment, no changes may be made to the Permit without the Director's written authorization; provided, however, that the City Council must approve any changes that would result in a Minor Encroachment becoming a Major Encroachment.

• H. By applying for authorization to maintain an Encroachment under this Chapter, the owner of the proposed Encroachment shall be deemed to have consented to the terms of the Permit and agrees to comply with and be bound by all applicable provisions of this Chapter.

• (Ord. 29966.)

Part 4

MAJOR ENCROACHMENTS - PERMIT AUTHORITY, APPROVAL, AND DENIAL

Sections:

• A. The City Council shall approve Permits for Major Encroachments. Permits issued for Major Encroachments shall only be revoked or terminated by the City Council.

• B. No Major Encroachment Permit shall be approved unless:

  1. The Encroachment will provide a public benefit to those using the Public Property;

  2. No other reasonable method of obtaining the desired results is available except for the Encroachment as proposed by the Applicant;

  3. The granting of the Permit will not unreasonably interfere with or disrupt use of the Public Property;

  4. The Public Property has the capacity to accommodate the proposed Encroachment and any other existing or foreseeable public or private facilities;

  5. The granting of the Permit will not be detrimental to the public interest, safety, health or welfare or have the potential to injure the property interests of others, whether public or private; and

6. The Applicant has demonstrated the Permittee's ability to install, maintain, repair and remove the Encroachment.

(Ord. 29966.)

• A. Applicants shall file an application with the Department of Public Works for each Major Encroachment. Each application shall be accompanied by:

  1. Location map, plan view and elevations showing the dimensions and exact location of the proposed Encroachment and its relationship to adjoining properties, Public Property and any structures, utilities or other improvements;

  2. A detailed written description of the Encroachment, including the manner of all proposed uses;

  3. Evidence of consent, in a form acceptable to the Director, of any public agencies, public or quasi-public utilities and adjacent property owners that may be required for the placement, installation, construction, maintenance or removal of the Encroachment;

  4. Satisfactory evidence that the Permittee will have the ability to construct, maintain, repair and remove the proposed Encroachment; and

  5. Any additional information requested by the Director of Public Works.

T13:79

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§ 13.37.410

• B. After a complete application has been filed, the Director shall cause an investigation to be made of the site where the proposed Major Encroachment would be installed. The Director shall recommend the approval, conditional approved or denial of the Major Encroachment application and forward all recommendations and findings to the City Council.

• C. If the City Council approves a Permit for a Major Encroachment, the City Council shall by resolution prescribe the terms and conditions for issuance of the Permit as it deems necessary.

• D. If the City Council denies a Permit its decision on the matter shall be final, and the Applicant shall be entitled to no further administrative appeals.

• (Ord. 29966.)

Part 5

MINOR ENCROACHMENTS - PERMIT AUTHORITY, APPROVAL, AND DENIAL

Sections:

• 13.37.510 Permit procedure for minor encroachments.

• A. The Director is authorized to approve, issue, revoke and terminate Permits for Minor Encroachments in accordance with this Chapter.

• B. The Director may adopt administrative guidelines, rules and regulations addressing the location, construction, form, size, safety, maintenance, repair and other manner of conduct of Minor Encroachments, and may include such provisions and additional conditions in a Permit that are not inconsistent with this Chapter.

• C. No Minor Encroachment Permit shall be approved unless:

  1. The granting of the Permit will not unreasonably interfere with or disrupt use of the Public Property;

  2. The Public Property has the capacity to accommodate the proposed Encroachment and any other existing or foreseeable public or private facilities;

  3. The granting of the Permit will not be detrimental to the public interest, safety, health or welfare or have the potential to injure the property interests of others, whether public or private; and

  4. The Applicant has demonstrated the Permittee's ability to install, maintain, repair and remove the Encroachment.

• (Ord. 29966.)

• A. Applicants shall file an application with the Department of Public Works for each Minor Encroachment. Each application shall be accompanied by:

  1. Location map, plan view and elevations showing the dimensions and location of the proposed Encroachment and its relationship to adjoining properties, Public Property and any structures, utilities or other improvements;

  2. A written description of the Encroachment, including all proposed uses;

  3. Evidence of consent, in a form acceptable to the Director, of any public agencies, public or quasi-public utilities and adjacent property owners that may be required for the placement, installation, construction, maintenance or removal of the Encroachment;

  4. Satisfactory evidence that the Permittee will have the ability to install, maintain, repair and remove the proposed Encroachment; and

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§ 13.37.600

5. Any additional information requested by the Director of Public Works.

• B. After a complete application has been filed, the Director shall cause an investigation to be made of the site where the proposed Minor Encroachment would be installed. The Director shall approve, conditionally approve or deny the application.

• (Ord. 29966.)

Part 6

MISCELLANEOUS PROVISIONS

Sections:

• 13.37.610 Consent of public agencies, utilities and adjacent property owners.

• A. The Director shall deny a Minor Encroachment application when the application is incomplete or the Permit, if granted, would not be in accordance with this Chapter.

• B. The Director shall notify an Applicant in writing of the decision to deny a Permit, including the grounds for denial and a notice of the hearing opportunity pursuant to this Section. The notice of decision shall become final, unless a written request for hearing is received within five (5) business days after the date of notice of decision.

• C. Upon receipt of a timely written request for a hearing, the Director shall schedule a hearing within thirty (30) days after receipt of the request for hearing. The Director shall notify the Applicant of the hearing date, time and location.

• D. At the hearing, the Applicant may present any relevant evidence. The hearing will be conducted informally and the technical rules of evidence shall not apply. The Applicant may be represented by any person.

• E. After closing the hearing, the Director shall give a decision sustaining, reversing or modifying the decision to deny the Permit. A written notice of final decision shall be handdelivered or sent by mail to the Applicant.

• F. The Director's decision may be appealed to the City Council, whose decision on the matter shall be final.

• (Ord. 29966.)

Prior to issuance of a Permit, the Applicant shall submit all of the following for the Director's review and approval:

• A. Improvement plans prepared by or under the direction of a registered civil engineer, including, without limitation, structural design and construction details as required.

  1. The form and content of all plans shall be in accordance with the standards of the Public Works Department and good engineering practice.

  2. When required by the Director of Public Works, the Applicant shall provide detailed engineering calculations upon which the design of any improvements is based.

• B. A plat map and legal description of the Public Property where the Encroachment is proposed to reside.

• C. A legal description of the Permittee's property, prepared by or under the direction of a registered civil engineer.

• D. For Minor Encroachments, the Director may waive any of the foregoing requirements if, in the Director's opinion, such a waiver is in the public interest.

• (Ord. 29966.)

T13:81

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§ 13.37.610

Each Applicant and Permittee shall be responsible for securing the consent of any public agencies, public or quasi-public utilities and adjacent property owners that may be required for the placement, installation, construction, maintenance, repair, use or removal of the Encroachment. Applicants and Permittees shall be solely responsible for any costs and expenses necessary to secure such consent.

(Ord. 29966.)

Each Permittee shall maintain accurate and complete drawings, plans, specifications and maps of the precise location, dimensions and character of the Encroachment and shall furnish to the Director of Public Works copies thereof upon his/her demand, at no cost to the City. (Ord. 29966.)

Cost recovery fees shall be collected in connection with Permits processed or issued under this Chapter, as set forth in the Public Works fee schedule and adopted by resolution of the City Council. (Ord. 29966.)

Any person that has violated any provision, or failed to comply with any of the requirements, of this Chapter shall be guilty of a misdemeanor. The Director shall enforce all of the provisions of this Chapter and any Permit issued thereunder by any method specified in Title 1 of the San José Municipal Code. (Ord. 29966.)

• 13.40.020 Map on file where - Memorandum of correct numbers furnished when.

• 13.40.030 Streets running north and south - Manner of designating numbers.

• 13.40.040 Streets running east and west - Manner of designating numbers.

• 13.40.050 Eastgate Annexation Nos. 2, 3 and 4; Orchard No. 1; Cottage Grove Annexation District No. 1 and No. 3; and Willow Glen District.

• 13.40.060 South Willow Glen Nos. 2, 3, 4, 5 and 7.

• 13.40.070 Kaiser Nos. 1 and 2, and Bascom Nos. 1, 3A, 4A, 5, 7 and 8.

• 13.40.080 North San José District; Rosemary Gardens Unit Nos. 1 and 2; North Rosemary No. 1; and Orchard Nos. 2, 5, 7 and 8.

• 13.40.090 Bascom Gardens No. 15.

• 13.40.100 South Willow Glen Nos. 9, 10 and 11.

• 13.40.110 South Willow Glen Nos. 12 and 13.

• 13.40.120 Orchard No. 9.

• 13.40.130 Bascom No. 13.

• 13.40.140 Jackson No. 1.

• 13.40.150 Bascom No. 14.

• 13.40.160 Bascom No. 20.

• 13.40.170 South Willow Glen No. 14.

• 13.40.180 South Willow Glen No. 15.

13.40.190 South Willow Glen No. 16.

• 13.40.200 Maypark No. 1.

• 13.40.210 Eastgate No. 5.